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In Depth

London (February 20, 2017) – International law firm McDermott Will & Emery won an important Court of Appeal ruling in one of the UK’s landmark Data Protection cases. The ruling in Dawson-Damer vs Taylor Wessing announced on Wednesday has reversed the previous position regarding the entitlement of a data subject to personal data in the context of litigation, and clarifies the scope of the Legal Professional Privilege exception under the Data Protection Act.

Background of the case

The First Claimant, Mrs Dawson-Damer, is a beneficiary of a Bahamian trust, who has brought proceedings in the Bahamas against the Trustee. Her adult children had also benefitted from the trust. Taylor Wessing, a London firm of solicitors, have acted as advisers to the trustee for many years and have in their possession personal data relating to all three Claimants. The Claimants served Taylor Wessing with a Subject Access Request (“SAR”) pursuant to the Data Protection Act (“DPA”). They accepted that privileged documents would not be disclosable, but argued that the only privilege between trustees and beneficiaries is litigation privilege: there is no privilege, for example, in opinions of counsel about the proper construction of the trust instrument. The solicitors refused to comply with the SAR on the grounds that (a) all (or nearly all) of the documents in their possession are protected from disclosure by legal advice privilege because they would not be disclosable to the beneficiaries under the laws of the Bahamas, and would also be privileged under English law; (b) the volume of those documents is such that it would require disproportionate effort on the part of the solicitors to inspect them in order to comply with the SAR; and (c) the court should exercise its discretion to refuse disclosure where the purpose of the SAR is to obtain disclosure for the purpose of litigation.

The Court of Appeal rejected all three of these arguments and held that:

The “legal professional privilege exception” in the DPA must be construed by reference to English law, and not foreign law; the fact that trustees may be entitled to withhold information from beneficiaries under trust law does not give rise to the exception.

Solicitors’ firms are not exempt from the scope of the DPA, and must review their files to determine what data is – and is not – privileged. There was no evidence before the Court that would justify a finding that such inspection would involve disproportionate effort on the part of Taylor Wessing.

The DPA does not prescribe what is or is not a “legitimate” motive for an SAR. The existence of legal proceedings, or any other “collateral purpose” for the SAR, should not preclude compliance with the DPA.

This is a landmark case which elucidates the scope and application of the DPA and reverses the effect of Durant v FSA, which has prevailed since 2004. It also clarifies the interplay between the DPA and beneficiaries’ right to information under the rule in Re Londonderry and Schmidt v Rosewood: Under English law, beneficiaries are as entitled to their personal data as any other person, regardless of any restrictions or considerations which a trustee may legitimately apply under trust law.

The McDermott team advising Dawson-Damer was led by head of the Firm’s Private Client practice in London, partner Ziva Robertson, and associate Catrin Hughes.

“We are very pleased with the result”, said Ziva Robertson. “It is a landmark decision and we are proud to deliver a successful outcome for our clients. In the age of transparency, this important decision affirms everyone’s right to access and protect their personal information held by others. In pursuing this matter our clients have safeguarded the fundamental rights of all individuals to obtain information held about them.”

About McDermott Will & EmeryMcDermott Will & Emery is a premier international law firm with a diversified business practice. Numbering more than 1,000 lawyers, we have offices in Boston, Brussels, Chicago, Dallas, Düsseldorf, Frankfurt, Houston, London, Los Angeles, Miami, Milan, Munich, New York, Orange County, Paris, Rome, Seoul, Silicon Valley and Washington, DC. Further extending our reach into Asia, we have a strategic alliance with MWE China Law Offices in Shanghai. Recently, the Firm was listed in Band 1 for International Private Wealth by Chambers Global 2016, being the only US firm to do so.

McDermott’s Private Client Practice Group represents high-net-worth individuals, families and closely held businesses with an extraordinary focus on the client’s specific, unique objectives. The team of more than 75 lawyers and 30 non-lawyer professionals is recognized as the top private client practice in the United States and among the top practices worldwide. The practice operates out of offices in Chicago, London, Los Angeles, Munich, New York, Paris, Rome, Shanghai, Silicon Valley and Washington DC with lawyers regularly working together to service clients of the firm. These clients also include those active in the UK, the US, and other countries, particularly South Africa and the Middle East.